Sandler v. Silk
| Decision Date | 02 December 1935 |
| Parties | SANDLER v. SILK et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
SANDLER
v.
SILK et al.
Supreme Judicial Court of Massachusetts, Suffolk.
Dec. 2, 1935.
Exceptions from Superior Court, Suffolk County; Weed, Judge.
Action of tort by Fannie Sandler against Max Silk and others. Finding for plaintiff at a hearing without a jury in the sum of $3,486, and defendant brings exceptions.
Exceptions overruled.
[292 Mass. 494]
[198 N.E. 750]
H. E. Ehrlich and T. H. Mahony, both of Boston, for plaintiff.
S. Sigilman, of Boston, for defendants.
RUGG, Chief Justice.
The declaration in this action of tort contains two counts for the same cause of action. In the first count there is alleged a conspiracy by the defendants fraudulently to foreclosue a second mortgage upon certain real estate without protecting the rights of the mortgagor or persons taking under him, including the plaintiff, in order to defeat an attachment held by the plaintiff; in the second count there is alleged a fraudulent foreclosure of such mortgage in the same circumstances. The present defendants are Silk, Tefft and Trachtenberg. They pleaded a general denial and res judicata. The plaintiff previously brought a suit in equity to set aside this mortgage as void against the present defendants and two others, Smith and Marcus, which was dismissed by final decree after rescript. Sandler v. Silk, 269 Mass. 562, 169 N.E. 431. At the trial of the present action the parties agreed to submit the issue as to liability [292 Mass. 495]upon the record of the proceedings in that suit in equity, exclusive of the testimony of witnesses but inclusive of the findings of the trial judge. No other evidence was introduced on liability.
The trial judge in the case at bar found that the material facts alleged in the declaration were true, made a finding in favor of the plaintiff, and assessed damages in a substantial sum. He ruled as matter of law that the issues here raised were not adjudicated in the suit in equity. The finding as to damages rests upon unreported evidence. No question is now raised on that branch of the case.
The defendants contend that upon the evidence this finding of the trial judge was unwarranted. Summarily stated, the evidence, which consisted mainly of admissions by pleadings and the findings made by the trial judge in the equity suit, was to this effect: In 1923 Marcus purchased the premises in question, subject to a first mortgage of $4,000, taking title in the name of Smith. Thereafter in July, 1923, Smith gave a mortgage for $1,000 to Marcus for which there was no consideration and no mortgage note was executed. On March 25, 1924, the plaintiff made an attachment of this real estate in an action of tort in which at first Smith alone was defendant and subsequently Marcus was joined as a defendant. On July 24, 1924, Marcus assigned the second mortgage without consideration to one Lewis, a brother-in-law of Silk. He in turn assigned it to Silk who in October, 1926, assigned it to Tefft. During that same month a third mortgage was given to Tefft and a fourth of Silk for which there was some consideration. In July, 1927, the fourth mortgage was foreclosed and the property ultimately deeded to Silk. On January 21, 1928, Tefft foreclosed the second mortgage and purchased the property at the foreclosure sale for $1,200. On January 23, 1928, judgment for $3,000 damages and $30.70 costs was entered in favor of the plaintiff in her action against Smith and Marcus, in which this property described in the second mortgage had been attached. On January 25, 1928, proceedings to sell the property on execution on that judgment were begun. Notice of the sheriff's sale was sent to Tefft [292 Mass. 496]by registered mail. Prior to the entry of judgment and to the foreclosure sale, the plaintiff, on December 27, 1927, requested Silk to inform her of any foreclosure, in the event that there should be one, in order that she might protect her interest by purchase. The attorney for the plaintiff was told by the attorney for Tefft that there would be no foreclosure without notifying the attorney for the plaintiff. No notice was given. The trial judge in the equity suit found that the testimony of Silk, Tefft and Trachtenberg was vague, evasive and highly unsatisfactory and found on all the evidence that the original assignment of the second mortgage and the subsequent dealings of the defendants with the property were designed to defeat the attachment of the plaintiff and were carried out in pursuance of a common purpose to vest the beneficial interest if not the title to the property the Silk.
The trial judge in the case at bar upon evidence which is not reported found that the fair market value of the property at the time of the foreclosure sale in January, 1928, was $7,800, and that the fair market
[198 N.E. 751]
value of the equity over the first and second mortgages was $2,800.
It has become settled by repeated and unvarying decisions that a mortgagee in...
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